People v. Cardona

75 A.D.2d 520, 426 N.Y.S.2d 1007, 1980 N.Y. App. Div. LEXIS 10906

Opinion

Judgment, Supreme Court, Bronx County, rendered May 24, 1978, convicting defendant of rape in the first degree and sentencing him to an indeterminate term not exceeding six years, unanimously modified, on the law, to reduce the judgment of conviction to rape in the second degree and the matter remanded for resentence. As the People concede, the facts admitted by defendant on the plea allocution do not support a conviction of rape in the first degree, but, instead, of rape in the second degree, in that being 18 years or more, he engaged in sexual intercourse with a female less than 14 years of age (Penal Law, § 130.30). Modification, to which the People consent and indeed, which they urge, is therefore appropriate to conform the conviction to the crime to which defendant pleaded. (See People v Waddell, 66 AD2d 807.) A remand is necessary, however, for resentence. Concur—Birns, J. P., Sullivan, Silver-man, Lynch and Carro, JJ. 9 Florinda B. Tome et al., Plaintiffs, v Jorge Buitrago et al., Defen-